2011/12: Are new laws needed for police to require Muslim women to remove their burqas?

What they said...
'I don't care whether a person is wearing a motorcycle helmet, a burqa, niqab, face veil or anything else, the police should be allowed to require those people to make their identification clear'
New South Wales premier, Barry O'Farrel

'This won't do anything to enhance justice in New South Wales. Is there any evidence that without this law there would be some big crime problem going on? I don't think so'
Greg Barnes, the national president of the Australian Lawyers Alliance

The issue at a glance
On July 5, 2011, the New South Wales cabinet signed off on draft laws which give police the power to ask motorists to remove head coverings, including burqas, for the purpose of accurate identification.
Muslim women who refuse to remove their burqas when ordered to by police could be jailed for up to a year or fined up to $5,500. Similar legislation is likely to be adopted in Western Australia.
Victoria and Queensland have indicated that they do not currently believe their police need additional powers in order to deal with suspects wearing head and face coverings.
The New South Wales laws have meet with a mixed reaction both within the Muslim community in Australia and outside it.

Background
A burqa is an enveloping outer garment worn by women in some Islamic traditions to cover their bodies in public places. The burqa is usually understood to be the woman's loose body-covering, plus the head-covering or ?ijab, plus the face-veil or niqab

The burqa in Australia
In 2010, Australian Liberal Senator Cory Bernardi called for the burqa to be banned in his country, branding it 'un-Australian'. The ban did not go ahead but debate about the burqa continues.
In 2010, Carnita Matthews of Sydney was sentenced to six months jail for making a false statement accusing a police officer of attempting to forcibly lift her burqa. The officer had pulled Mrs Matthews over for a random breath test and then ticketed her for failing to properly display a P-plate. She then submitted a signed false complaint to a police station while wearing a burqa.
Islamist activists protested in support of Matthews. Judge Clive Jeffreys overturned the conviction in June 2011, citing what he thought were differences between the signature on her license and that on the complaint and the fact that as the complainant had been wearing a burqa it was not possible to conclusively identify her as Mrs Matthews. Forensic handwriting examiners, whom Jeffreys did not consult, said that differences between signatures were to be expected. She then proceeded to seek legal costs.
On July 5th 2011, New South Wales became the first Australian state to draft laws allowing police to demand that burqas (and other head gear such as motorcycle helmets) be removed when police were seeking to confirm a driver's identification.

The burqa and the law in some other countries
Wearing the burqa has not been allowed in French public schools since 2004 when it was judged to be a religious symbol like the Christian cross.
On 14 September 2010, the French Senate overwhelmingly approved a ban on burqas in public, with the law becoming effective beginning on 11 April 2011. When the measure was sent in May to the parliament they said, 'Given the damage it produces on those rules which allow the life in community, ensure the dignity of the person and equality between sexes, this practice, even if it is voluntary, cannot be tolerated in any public place.'
In Belgium, a law to ban clothing that hides a person's identity in public spaces has been passed by one of its two houses of parliament and is expected to go through the other with cross-party support. While Islamic veils are not specifically referred to, they would clearly be covered by the new laws.
Spain has no national laws, but Barcelona, a city with a large number of Muslim migrants, has banned full-face veils in public spaces such as markets and libraries.
Britain has seen some political agitation for a ban on Muslim veils from the Independence Party but has not gone down that path. Schools are allowed to make an independent assessment about headwear when they formulate their uniform rules.

Internet information
On May 17, 2010, the ABC opinion sub-section of its Internet site, The Drum, published a comment written by Pru Goddard titled, 'Stand up for Australia: don't ban the burqa'. Pru Goddard argues why it is important that Australia respect this Muslim tradition.
The full text of this opinion piece can be found at http://www.abc.net.au/unleashed/34488.html

On February 14, 2011, Right Now, an Australian human rights journal, published an opinion piece by Jacqui Pavey and titled, 'The burqa or the ban: which is worse'. Though critical of the burqa, Pavey argues that to place a ban on it being warn would worsen the situation of Muslim women.
The full text of the opinion piece can be found at http://rightnow.org.au/writing-cat/article/the-burqa-or-the-ban-which-is-worse/

On April 13, 2011, The Courier Mail published an opinion piece by Mirko Bagaric titled, 'Establish if wearing burqa a choice'. The article defends the right of Muslim women to wear a burqa from a civil liberties point of view. The full text of this article can be found at http://www.couriermail.com.au/news/establish-if-wearing-burqa-a-choice/story-e6freomx-1226038097835

On April 25, 2011, the editor of the Queensland Muslim Times, Bilal Rauf, published an opinion piece titled, 'Burqa, read all about it'. The piece argues that most of the justifications offered for banning or restricting the wearing of the burqa are inadequate. The full text of this comment can be found at http://qmt.org.au/burqa-read-all-about-it/

On June 22, 2011, Perth Now published an opinion piece by Tory Shepherd titled, 'A burqa, large lie, and behold the pickle'. The piece condemns the provocative behaviour of those Muslims whose actions helped to prompt the recent change of law in New South Wales. It also argues that the legislative change is an over-reaction.
The full text of this comment can be found at http://www.perthnow.com.au/a-burqa-large-lie-and-behold-the-pickle/comments-fn6mhct1-1226080010195

On July 3, 2011, The Sunday Telegraph published a report by Claire Harvey titled, 'Top cop's verdict on burqas'. The report details New South Wales Police Commissioner Andrew Scipione's reasons for wanting a strengthening of police powers in relation to face coverings. The full text of the article can be found at http://www.dailytelegraph.com.au/news/police-commissioner-andrew-scipione-calls-for-new-powers-to-force-women-to-remove-their-veils/story-e6freuy9-1226086316409

On July 5, 2011, CNN Go published a news report by Matt Koury, titled 'The law speaks: Take off that burqa'. The article outlines the recent proposed changed to New South Wales law with regard to the removal of burqas. It gives a variety of reactions to these changes.
The full text of this article can be found at http://www.cnngo.com/sydney/life/law-speaks-take-burqa-333128

On July 5, 2011, The Courier Mail published a news report by James O'Loan titled, 'No burqa ban ... for the moment'. The report outlines the decision of the Queensland government and police that the state does not need to adjust its laws to deal with Muslim women who wear burqas. It also outlines why New South Wales authorities took a different position in that state.
The full text of this report can be found at http://www.couriermail.com.au/ipad/no-burqa-ban-for-the-moment/story-fn6ck51p-1226088227944

On July 5, 2011, The Punch published an online analysis by Anthony Sharwood titled, 'Australia is still a long way from France'. The piece gives an essentially favourable view of the New South Wales changed legislation presented by a prominent Muslim spokesperson.
The full text of this analysis can be found at http://www.thepunch.com.au/articles/australia-is-still-a-long-way-from-france/

On July 5, 2011, The Telegraph published a report by Kate Sikora, titled, 'Lift the veil, or go to jail - police get tough on burqas'. The report gives details of the new New South Wales legislation and outlines some of the justifications offered for it.
The full text of this article can be found at http://www.dailytelegraph.com.au/news/police-get-tough-on-burqas/story-e6freuy9-1226087503421

On July 6, 2011, the opinion section of the ABC's Internet site, The Drum, published a comment by Jeff Sparrow, titled, 'Burqa ban: in the name of good old-fashioned prejudice'. The piece argues that most of the justifications offered for banning the burqa or placing restrictions upon it are motivated by prejudice.
The full text of this piece can be found at http://www.abc.net.au/unleashed/2784376.html

Arguments supporting the removal of burqas
1. The police should be able to make an identification of crime suspects
It has been argued that making accurate identifications of crime suspects is important if police are to do their jobs properly and protect the community from criminals.
In an opinion piece published in The Punch on July 5, 2011, Anthony Sharwood stated, 'Whether you're talking about sunglasses, helmets or a niqab, there are times when items need to be removed so police can do the jobs we all pay them to do.'
An editorial published in The Australian on July 7, 2011, states, 'At question here is the right of police to identify people for security purposes or in order to investigate alleged breaches of the law. This right has always been implicit in our law enforcement practices and we would have it no other way. If police are to have any authority or effectiveness, then they must have the ability to check and verify the identity of the people with whom they speak.'
New South Wales Attorney-General Greg Smith has stated that there was a duty on all citizens to identify themselves when asked by police and the law should reflect that.

2. Current laws are not adequate to ensure the identification of those suspected of a crime
New South Wales police and political leaders have indicated that the laws in their state had not previously given police sufficient power to deal with Muslim women suspected of committing more minor crimes. Both New South Wales and Western Australia have indicated that while their laws gave police officers the power to have Muslim women remove their face coverings if they were suspected of committing a serious offence, the position is less clear if a Muslim woman wearing a burqa were suspected of committing a more minor infringement.
Under their former powers New South Wales police did not have the power during routine car stops, or for other minor matters to ask a Muslim woman, or any other person, to remove their face covering. The New South Wales Police Commissioner, Andrew Scipione, had stated that police in his state needed stronger powers to identify women who wore full facial veils. The Commissioner has stated, 'We need to take action to close this potential loophole and strengthen police powers to demand identification.'
Rob Johnson, the Western Australian Police Minister, has stated, 'I'm concerned at the idea of police not having the power to request drivers to remove helmets or other face coverings for ID purposes at the roadside.'

3. Religious toleration should not stop the identification of crime suspects
It has been argued that a desire to protect the religious freedom of expression of some groups cannot be allowed to interfere with the police as they perform their duties. Those who hold this view argue that religious toleration cannot stand in the way of community safety and the proper conduct of law and order.
The New South Wales premier, Barry O'Farrell, has stated, 'I have every respect for various religions and beliefs, but when it comes to enforcing the law the police should be given adequate powers to make a clear identification.'
A similar point has been made by a spokesperson for the Islamic Friendship Association of Australia, Mr Keysar Trad. Mr Trad has stated, 'The security of the country and general law and order take priority over issues of choice of this nature.'
George Williams, Professor of politics at the University of New South Wales, has stated that while freedom of religion in the Australian Constitution does not apply to state laws, even this constitutional directive would find it hard to overturn legislation based on legal identification.
A Herald Sun editorial, published on June 22, 2011, stated, 'What are the police to do? The laws of the road must be the same for all. Burqas are no excuse.'

4. The police will use their increased powers appropriately
Repeated assurances have been given that police would use their increased powers with sensitivity. It has been claimed that police are trained to be aware of the cultural sensitivities of the different groups that make up the Australian community and that they will, therefore, use their increased powers regarding the burqa in a way that will not give offence to Muslim women.
In an editorial published in The Australian on July 7, 2011, it was stated, 'It should go without saying that these police rights should be exercised wisely, with appropriate restraint, and respect cultural sensibilities insofar as they do not infringe the rule of law.'
The New South Wales Police Commissioner, Andrew Scipione, has further stated, 'It comes down to trust. People need to trust us. We are not in the business of trying to exploit some racist position, because that is counter-productive to the community.'

5. The law is not discriminatory as all face coverings, not only burqas, must be removed
It has been pointed out that the new law in New South Wales and the law proposed for Western Australia are not discriminatory as they apply to all face coverings, not only those worn be Muslim women.
The New South Wales premier, Barry O'Farrel, has stated, 'I don't care whether a person is wearing a motorcycle helmet, a burqa, niqab, face veil or anything else, the police should be allowed to require those people to make their identification clear.'
Pru Goward, shadow minister for women, and community services and a former federal Sex Discrimination Commissioner has stated, 'Let's have an open face policy in shops and at security points that applies to burqas, cloaks, bike helmets, outsized sunglasses and anything else that makes identification difficult. It is not discriminatory, it is safer and applies to everyone.'

6. Muslim leaders have accepted the new law
A number of spokespeople for the Muslim community in Australia have accepted the need for the revised laws.
Islamic Friendship Association of Australia chairman Keysar Trad stated, 'We understand that if police stop someone and they need to identify them then they should be able to, provided there is a legitimate reason to stop them.'
Waleed Aly, a lecturer in politics at Monash University and a former member of the executive committee of the Islamic Council of Victoria has stated, 'I don't have a problem with them [the proposed new laws] in principle. It's hard to resist the idea that police have the right to confirm a person's identity.'
An Australian editorial published on July 7, 2011, stated, 'Representatives of the NSW Muslim community have reacted sensibly to the proposed new laws, showing a good deal more maturity on this matter than a number of so-called human rights lawyers and one or two activists. It is clear that mainstream Muslim leaders understand the requirement to verify identity and have represented their communities well by publicly endorsing the changes.'

Arguments opposing the removal of burqas
1. Muslim women and burqa-wearing pose no significant crime risk
It has been claimed that there is no need to introduce legislation requiring Muslim women to remove their burqas if instructed to do so by a police officer as Muslim women are not a crime risk. Crime statistics demonstrate that very few Muslim women commit crimes in any Australian jurisdiction.
Greg Barnes, the national president of the Australian Lawyers Alliance has described the new laws as a 'needless political stunt'.
Barnes has stated, 'This won't do anything to enhance justice in New South Wales. Is there any evidence that without this law there would be some big crime problem going on? I don't think so.
There's no reason to do this other than to pander to elements in the community that are anti-Islam, and for that reason these laws are taking this issue into dangerous territory.'
Rebecca Kay, a prominent Muslim woman who ran as an independent in the seat of Bankstown in the 2011 state election has stated, 'These women are all mothers, sisters, daughters and human beings. What statistics are there available that show that women who wear the niqab are dangerous or criminals?'
In an opinion piece published in The Courier Mail, Mirko Bagaric stated, 'The stock-in-trade reasons given for banning the burqa are demonstrably flawed and are often no more than thinly-veiled anti-Muslim rants. There are no proven cases in Australia of criminals using burqas as disguises. So it is nonsense to challenge burqas on security grounds.'

2. Police already have sufficient powers to ask Muslim women to remove their burqas.
Victoria and Queensland police and political leaders have indicated that they believe their laws already give the police sufficient power in this area.
The Queensland Police Commissioner, Bob Atkinson, has stated, 'We've had a good look at it here in Queensland and we think there's no need to change legislation. We think that the current laws are quite adequate, that our policies are quite adequate.'
Mr Atkinson also described as 'reasonable' an officer's request to remove a burqa or niqab (or other dress obstructing a face) for the purposes of identification and stated that he could not recall one instance where a Muslim woman had refused such a request.
Queensland and Victorian laws allow police to take measures to identify someone to match them to an identity card, or if they are suspected of committing an offence.
It has also been stated that if there is a need to ensure the identity of a Muslim woman wearing a burqa there are other means available, such as fingerprinting her.

3. The new law may be applied insensitively
Concern has been expressed that the new laws may be used insensitively or excessively in a way that would give Muslim women unnecessary distress or offence.
Waleed Aly, a lecturer in politics at Monash Uni and a former member of the executive committee of the Islamic Council of Victoria, has stated, 'It's a question of implementation. If police abuse the powers they have, then that would be a problem. I'd like to see some safeguards introduced but just what sort of safeguards is hard to say.'

4. The law change could foster prejudice against Muslims
It has been stated that drawing public attention to burqas as a law and order issue carries the risk of provoking hostility toward Muslims.
Helen Szoke, Victoria's equal opportunity and human rights commissioner has stated that constantly airing the issue threatened the safety of Muslim women on public transport and in other public places.
Ms Szoke has indicated, 'I'd be concerned if that whole anti-burqa, anti-hijab dialogue started again. It really places Muslim women who choose to wear that garb in a pretty invidious situation.
Heba Ibrahim, a board member of the Australian Federation of Islamic Councils, has stated that there is a lot of anecdotal evidence of anti-Muslim abuse when politicians and others raise the burqa issue.
Pru Goward, shadow minister for women, and community services and a former federal Sex Discrimination Commissioner has stated, 'Successive generations of migrants and their children have been charmed by Australian tolerance and the historical squabbles of home lands and old allegiances set aside in its pursuit. If we were now to treat one section of the community as the enemy then in a very short time that is what they would become.'

5. Some Muslims see the law change as victimisation.
Some Muslim critics argue that the bill smacks of victimisation given how few women in Australia wear burqas. In a population of 23 million, only about 400,000 Australians are Muslim. Community advocates estimate that fewer than 2,000 women wear face veils, and it is likely that even a smaller percentage drives.
Thus some Muslims see that the new law targets them disproportionately and are the product of prejudice.
One of the reasons why the law is seen as victimisation is that is seems to focus exclusively on the burqa. It is claimed that while police stop motorcyclists every day, there has never been agitation to amend the Motor Transport Act so as to force recalcitrant motorbike riders to remove their helmets.
Bilal Rauf, the editor of the Queensland Muslim Times, has stated, 'Ultimately, when regard is had to the arguments put forward, those who argue for limitations on the wearing of the burqa do so because of their personal views and ideologies rather than any credible or objective basis.'

6. The new law may discourage some Muslim women from leaving their homes
It has been claimed that popular hostility toward the wearing of the burqa creates a major dilemma for some Muslim women.
According to this line of argument, when these Muslim women fear encountering hostility if they wear a burqa when they go out into the community this could prevent them leaving their homes at all.
Islamic Friendship Association of Australia chairman Keysar Trad said that, while the burqa was not worn by many women in Australia, those who chose to wear it had real concerns about showing their face to any male.
Their beliefs and convictions tell them that it is only acceptable for them to go out into the larger world if they have their faces covered. If they believe wearing the burqa will expose them to verbal abuse, they may feel unable to go outside altogether.
Helen Szoke, Victoria's equal opportunity and human rights commissioner has stated, 'It can make you feel frightened or makes you feel like you don't want to come out... Everyone is entitled to an opinion [but] at the same time everyone is also entitled to feel safe and accepted in our community.'
The number of religious vilification complaints received by the Victorian equal opportunity and human rights commission is 50 per cent higher than at the same time in 2010. Race-based complaints have also increased by more than 40 per cent.
As an example of what may occur if the community is encouraged to see burqas as suspect there have been two recent instances in New Zealand. In one a woman was left crying on the street after a bus driver refused to let her on board because of her veil and another was told by a driver to remove her veil.

Further implications
The future of the New South Wales legislation is likely to be determined by the discretion and sensitivity with which it is implemented. A number of Muslim leaders have indicated that they recognise why the law has been changed. If the new law is put into practice in a thoughtful manner then it may well gain general acceptance among Muslims living in Australia.
Some Muslim spokespeople have stated that they would prefer that burqa-wearing Muslim women be given the opportunity to show their faces to female police officers. Clearly, if that is a possibility, it would be the most desirable manner in which to confirm an identification as it would respect the preferences of the Muslim woman concerned.
It is also important that police officers not seek to make unnecessary identifications. The case of Carnita Matthews which precipitated the change of law in New South Wales began when Mrs Matthews was pulled over for a random breath test. Given that practising Muslims do not drink alcohol it would seem very unlikely that Mrs Matthews would have had an unsafe blood alcohol level. Critics argue that police are going to need to show greater cultural awareness and not check the identity of Muslim women when there is no real need to do so.
It will also be interesting to see whether some Muslim women adopt a confrontational attitude when asked to reveal their faces. Carnita Matthews challenged the authority and conduct of the police officer who stopped her in a way which seems to have exacerbated the situation. It is possible that some Muslim women may refuse to reveal their faces to a male police officer and would risk imprisonment as a result. Such a development would clearly be undesirable and would harm relations between Muslim Australians and the general Australian community.
On a more positive note, it is possible that the legislation about to be adopted in new South Wales may reduce demands that the burqa be banned in Australia. Identification and security are to of the main reasons offered for banning the burqa. If identification issues can be effectively addressed this may remove the pressure being exerted by some to have the wearing of the burqa prohibited.

Newspaper items which may be useful in a study of this media issue
AGE, August 27, page 17, comment by Sushi Das, `PC brigade kills debate on burqa ban'.
http://www.smh.com.au/opinion/society-and-culture/pc-brigade-kills-debate-on-burqa-ban-20100826-13u4o.html

AUST, September 20, page 2, news item (photo) by Sally Neighbour, `Muslim women protest against push to ban burka'.
http://www.theaustralian.com.au/news/nation/muslim-women-protest-against-push-to-ban-burka/story-e6frg6nf-1225926431199

H/SUN, October 20, page 34, comment by Andrew Bolt, `Lowering a veil on men's rights to see justice being delivered'.
http://www.heraldsun.com.au/opinion/lowering-veil-on-mens-rights/story-e6frfhqf-1225940876966

H/SUN, October 15, page 37, comment by Andrew Bolt, `Stand up to defend free speech'.
http://www.heraldsun.com.au/opinion/stand-up-to-defend-free-speech/story-e6frfhqf-1225938881196

AGE, November 8, page 7, news item (photo of Julia Gillard, Hillary Clinton) by Dan Oakes, `Burqa ban has merit, says Clinton'.
http://www.theage.com.au/national/burqa-ban-has-merit-says-clinton-20101107-17iyl.html

AUST, April 11, 2011, page 3, news item by Guest and Minus, `(WA) Libs applaud minister for saying burka is "alien"'.
http://www.theaustralian.com.au/national-affairs/minister-says-burka-is-alien-prompting-applause-from-libs/story-fn59niix-1226036884169

H/SUN, April 5, 2011, page 17, news item (with boxed information on burqas, chadors etc) by Masanauskas and Wright, `Muslims happy to be festive'.
http://www.heraldsun.com.au/news/more-news/muslims-happy-to-be-festive/story-fn7x8me2-1226033668602

AUST, April 11, 2011, page 11, news item, `French public bids vale to the veil'.
http://www.theaustralian.com.au/news/world/french-public-bids-vale-to-the-veil/story-e6frg6so-1226036859158

H/SUN, April 19, 2011, page 24, comment by Susie O'Brien, `Outright ban is a mistake'.
http://www.heraldsun.com.au/opinion/outright-burqa-ban-is-a-mistake/story-fn56aaiq-1226041203893

H/SUN, June 28, 2011, page 26, comment by Susie O'Brien, `Playing by our rules'.
http://www.heraldsun.com.au/opinion/migrants-need-to-play-by-our-rules/story-fn56aaiq-1226083104621

AGE, April 16, 2011, page 21, analysis by Paola Totaro (photos), `France behind the veil'.
http://www.theage.com.au/world/france-behind-the-veil-20110415-1dhp7.html

H/SUN, June 23, page 36, comment (photos) by Miranda Devine, `Stop Islam's ugly voice'.
http://www.heraldsun.com.au/ipad/we-need-to-stop-islams-ugly-voice/story-fn6bn88w-1226080181779

H/SUN, June 22, 2011, page 33,  comment by Andrew Bolt, `Tribalism an affront to society'.
http://www.heraldsun.com.au/opinion/tribalism-an-affront-to-society/story-e6frfifx-1226079526303

AUST, June 22, 2011, page 5, news item by Jodie Minus, `Fingerprint push on face veils'.
http://www.theaustralian.com.au/news/nation/fingerprint-push-on-face-veils/story-e6frg6nf-1226079565388

H/SUN, July 7, 2011, page 31, comment by Nazeem Hussain, `Veil request is already well covered'.
http://www.heraldsun.com.au/ipad/veil-request-is-already-well-covered/story-fn6bn88w-1226089240939

AUST, July 7, 2011, page 13, editorial, `Face up to real issue of burkas'.
http://www.theaustralian.com.au/news/opinion/face-up-to-real-issue-of-burkas/story-e6frg71x-1226089247780

H/SUN, July 6, 2011, page 30, editorial, `Lift the veil'.
http://www.heraldsun.com.au/opinion/editorials/moves-afoot-to-lift-the-veil/story-e6frfhqo-1226088403436

H/SUN, July 6, 2011, page 1, news item by S McMahon, `Lift the veil'.
http://www.heraldsun.com.au/ipad/pressure-on-state-government-to-lift-the-veil/story-fn6bfmgc-1226088379922

AUST, July 6, 2011, page 13, analysis (photo - ref to new NSW laws) by Stephen Lunn, `Facing up to questions of identity'.
http://www.theaustralian.com.au/news/features/facing-up-to-questions-of-identity/story-e6frg6z6-1226088349667

AGE, July 6, 2011, page 3, news item by Reid Sexton, `Islamic dress law review'. (video clip in online version)
http://www.theage.com.au/victoria/islamic-dress-law-review-20110705-1h0rj.html

AUST, July 5, 2011, page 3, news item by Imre Salusinszky, `O'Farrell lets police order lifting of veil'.
http://www.theaustralian.com.au/national-affairs/ofarrell-lets-police-order-lifting-of-veil/story-fn59niix-1226087499272